The decision of the Court in the case of
Foster
& Elam v. Neilson, 2 Pet. 254, by which grants
made by the Crown of Spain, after the Treaty of St. Ildefonso, of
lands west of the River Perdido, and which were by the United
States declared to be within the Territory of Louisiana ceded by
France to the United States were declared void, affirmed.
Congress, in order to guard against imposition, declared by the
law of 1804 that all grants of land made by the Spanish authorities
in the territory west of the Perdido after the date of the Treaty
of St. Ildefonso should be null and void, excepting those to actual
settlers acquired before December 20, 1803.
The controversy in relation to the country lying between the
Mississippi and the Perdido Rivers and the validity of the grants
made by Spain in the disputed territory after the cession of
Louisiana to the United States were carefully examined and decided
in the case of
Foster & Elam v. Neilson. This Court in
that case decided that the question of boundary between the United
States and Spain was a question for the political departments of
the government; that the legislative and executive branches having
decided the question, the courts of the United States are bound to
regard the boundary determined by them as the true one; that grants
made by the Spanish authorities of lands which, according to this
boundary line belonged to the United States, gave no title to the
grantees in opposition to those claiming under the United States
unless the Spanish grants were protected by the subsequent
arrangements made between the two governments, and that no such
arrangements were to be found in the treaty of 1819, by which Spain
ceded the Floridas to the United States according to the fair
import of its words and its true construction.
In the case of
Foster & Elam v. Neilson, this Court
said that the Florida treaty of 1819 declares that all grants made
before 24 January, 1818, by the Spanish authorities
"shall be ratified and confirmed to the persons in possession of
the lands to the same extent that the same grants would be valid if
the territories had remained under the dominion of His Catholic
Majesty,"
and in deciding the case of
Foster & Elam v.
Neilson the Court held that even if this stipulation applied
to lands in the territory in question, yet the words used did not
import a present confirmation by virtue of the treaty itself, but
that they were words of contract;
"that the ratification and confirmation which were promised must
be the act of the legislature, and until such shall be passed, the
Court is not at liberty to disregard the existing laws on the
subject."
Afterwards, in the case of
United States v.
Percheman, 7 Pet. 86, in reviewing the words of the
eighth article of the treaty, the Court, for the reasons there
assigned, came to a different conclusion and held that the words
were words of present confirmation, by the treaty, where the land
had been rightfully granted before the cession, and that it did not
need the aid of an act of Congress to ratify and confirm the grant.
This language was, however, applied by the Court, and was intended
to apply to grants made in a territory which belonged to Spain at
the time of the grant. The case then before the Court was one of
that description. It was in relation to a grant of land in Florida,
which unquestionably belonged to Spain at the time the grant was
made, and where the Spanish authorities had an undoubted right to
grant until the treaty
Page 37 U. S. 512
of cession in 1819. It is of such grants that the Court spoke
when it declared them to be confirmed and protected by the true
construction of the treaty, and that they do not need the aid of an
act of Congress to ratify and confirm the title of the purchaser.
The Court does not apply this principle to grants made within the
Territory of Louisiana. The case of
Foster & Elam v.
Neilson must in all other respects be considered as affirmed
by the case of
Percheman;, as it underwent a careful
examination in that case and as none of its principles was
questioned except that referred to.
The leading principle in the case of
Foster & Elam v.
Neilson which declares that the boundary line determined on as
the true one by the political departments of the government, must
be recognized as the true one by the judicial departments was after
that case directly acknowledged and affirmed by this Court in 1832
in the case of
United States v. Arredondo, 8 Pet. 711, and
this decision was given by the Court with the same information
before it as to the meaning of the Spanish side of the treaty which
is mentioned in the case of
Percheman.
In the District Court of Louisiana, the plaintiff in error, a
resident in Cuba, on 26 January, 1836, filed a petition stating
that on 1 September, 1806, he purchased of the Spanish government,
for a valuable consideration, and was put into possession of the
same, fifteen thousand arpents of land, divided into three tracts
or parcels having such marks and bounds as are laid down in the
original plots and surveys annexed to the deed of sale by Juan
Ventura Morales, then intendant of the Spanish government, dated 5
September, 1806. Certified copies of the deed of sale, plots, and
surveys were annexed to the petition.
The petition stated that Samuel Lee, a resident in the Parish of
Feliciana and a citizen of the state, had taken possession of ten
thousand arpents, part of the said grant, which is situated in the
now State of Louisiana, and refuses to deliver up the same. The
petitioner prays to be put in possession of the said land
&c.
On 17f May, 1836, Samuel Lee filed an answer and exception to
the plaintiff's petition in which he denied
"all and singular the allegation in the plaintiff's petition
herein exhibited against him, and will on trial require strict and
legal proof of the same, and especially does he deny any
jurisdiction of the Spanish government over the territory in which
the land claimed by the plaintiff is situated at the time the grant
exhibited by him was made or at any time subsequent thereto, and
strictly denies the right of the said
Page 37 U. S. 513
government or the officers thereof to make grants or sales of
land therein."
On 27 February, 1837, the District Court of Louisiana entered a
judgment in favor of the defendant, and the plaintiff prosecuted
this appeal.
At the hearing of this case in the district court, certain
documentary evidence was offered by the plaintiff which was not
received by the court, and the plaintiff took an exception to the
rejection of the same. This bill of exceptions, containing all the
documents offered and rejected in the court below, was sent up with
the record.
Page 37 U. S. 515
MR. CHIEF JUSTICE TANEY delivered the opinion of the Court:
In this case, the appellant claims ten thousand arpents of land,
being part of a grant for fifteen thousand arpents which he alleges
in his petition were granted to him by the Spanish authorities in
1806. The land is situated in the State of Louisiana and in the
territory lying north of the Iberville and between the Perdido and
the Mississippi which was so long a subject of controversy between
the United States and Spain and which was finally settled by the
cession of the Floridas to the United States by the Treaty of
February 22, 1819.
It is well known as a matter of history that the executive and
legislative departments of our government have continually insisted
that the true boundary of Louisiana as we acquired it by the treaty
with France of 30 April, 1803, extended to the Perdido, that the
claim of the United States was disputed by Spain, and that she
refused to deliver the territory and claimed a right to exercise
the powers of government over it, which claim the United States
denied. On 29 March, 1804, Congress passed a law dividing Louisiana
into two territorial governments, and in order to protect the
interest of the United States in the disputed territory, the 14th
section of this law enacts that all grants for lands within the
territories ceded by
"the French Republic to the United States by the Treaty of 30
April, 1803, the title whereof was at the date of the Treaty of St.
Ildefonso in the Crown, government or nation of Spain, and every
act and proceeding subsequent thereto, of whatsoever
Page 37 U. S. 516
nature towards the obtaining of any grant, title or claim to
such lands, and under whatsoever authority transacted or pretended,
be, and the same are hereby declared to be and to have been from
the beginning null all void and of no effect in law or in
equity."
The titles of actual settlers, acquired before 20 December,
1803, are excepted by a proviso from the operation of this
section.
The grant under which the appellant, Garcia, claims falls within
the provisions of this section, and as this law of Congress has
never been repealed or modified in relation to grants made by the
Spanish authorities, the appellant has no title at law or in equity
unless it can be shown that the act of Congress in question, upon
some ground or other, is void and inoperative and that the courts
of the United States are bound to recognize a title acquired in
opposition to its provisions.
The questions presented by the record before us are not new in
this Court. They were examined and considered in the case of
Foster & Elam v.
Neilson, decided here in 1829 and reported in 2
Pet. 254. In that case, the land in dispute was granted by the
Spanish governor on 2 January, 1804, and ratified by the King of
Spain on 29 May, 1804. The controversy in relation to the country
lying between the Mississippi and the Perdido, and the validity of
the grants made by Spain in the disputed territory after the
cession of Louisiana to the United States, were carefully examined
and decided in that case, and all of the facts and arguments
necessary to a correct decision were then before the Court. They
are substantially the same with those now offered to support the
claim of the appellant, and are so fully set forth in the report of
that case that it is unnecessary here to repeat them. This Court
then decided that the question of boundary between the United
States and Spain was a question for the political departments of
the government; that the legislative and executive branches having
decided the question, the courts of the United States was bound to
regard the boundary determined on by them as the true one. That
grants made by the Spanish authorities of lands which according to
this boundary line belonged to the United States gave no title to
the grantees in opposition to those claiming under the United
States unless the Spanish grants were protected by the subsequent
arrangements made between the two governments, and that no such
arrangements were to be found in the treaty of 1819, by which Spain
ceded the Floridas to the United States, according to the fair
Page 37 U. S. 517
import of its words and its true construction. These positions
have all been controverted in the argument at the bar in the case
now before us. But we do not think it necessary in deciding the
case to enter upon a discussion of the various topics pressed upon
the attention of the Court, and shall content ourselves with
extracting several portions of the opinion delivered by Chief
Justice Marshall in the case of
Foster & Elam v.
Neilson in order to show that all of the points now raised
were carefully considered and decided in the case referred to. In
page
27 U. S. 309 of
2 vol. of Peters' Reports, the Chief Justice states the opinion of
the Court in the following words:
"After these acts of sovereign power [by the United States] over
the territory in dispute, asserting the American construction of
the treaty by which the government claims it, to maintain the
opposite construction in its own courts would certainly be an
anomaly in the history and practice of nations. If those
departments which are entrusted with the foreign intercourse of the
nation which assert and maintain its interests against foreign
powers have unequivocally asserted its rights of dominion over a
country of which it is in possession and which it claims under a
treaty, if the legislature has acted on the construction thus
asserted, it is not in its own courts that this construction is to
be denied. A question like this respecting boundaries of nations
is, as has been truly said, more a political than a legal question,
and in its discussion the courts of every country must respect the
pronounced will of the legislature. Had this suit been instituted
immediately after the passage of the act for extending the bounds
of Louisiana, could the Spanish construction of the Treaty of St.
Ildefonso have been maintained? Could the plaintiff have insisted
that the land did not lie in Louisiana, but in West Florida; that
the occupation of the country by the United States was wrongful,
and that his title under a Spanish grant must prevail because the
acts of Congress on the subject were founded on a misconstruction
of the treaty? If it be said that this statement does not present
the question fairly because a plaintiff admits the authority of
this Court, let the parties be changed. If the Spanish grantee had
obtained possession, so as to be the defendant, would a court of
the United States maintain his title under a Spanish grant, made
subsequent to the acquisition of Louisiana, singly on the principle
that the Spanish construction of the Treaty of St. Ildefonso was
right and the American construction wrong? Such a decision would,
we think,
Page 37 U. S. 518
have subverted those principles which govern the relations
between the legislature and judicial departments, and mark the
limits of each."
"If the rights of the parties are in any degree changed, that
change must be produced by the subsequent arrangements made between
the two governments."
After having thus fully expressed the opinion that the Court was
bound to recognize the boundary of Louisiana as insisted on by the
Legislature of the United States and that the American grants of
land must prevail over those made by the Spanish authorities after
the date of the Treaty of St. Ildefonso unless "the rights of the
parties had been changed by subsequent arrangements made between
the two governments," the Court in the same case proceed to examine
whether the validity of these grants was recognized by the United
States or provided for in the treaty of 1819. And after examining
the articles of the treaty which had been relied on in the argument
as providing for the grants made by the Spanish authorities, the
opinion of the Court on that part of the case is stated by the
Chief Justice in the following words:
"It is not improbable that terms were selected which might not
compromise the dignity of either government and which each might
understand consistently with its former pretensions. But if a court
of the United States would have been bound under the state of
things existing on the signature of the treaty to consider the
territory then composing a part of the State of Louisiana as
rightfully belonging to the United States, it would be difficult to
construe this article into an admission that it belonged rightfully
to His Catholic Majesty."
It had also been contended in argument in that case that the
exception of certain large grants of land by name (which had been
made by the Spanish government) in the ratification of the treaty
by Spain implied that other fair grants were to be obligatory on
the United States. But the Court held otherwise and said:
"The form of this ratification ought not, in its opinion, to
change the natural construction of the words of the eighth article
or extend them to embrace grants not otherwise intended to be
confirmed by it."
"An extreme solicitude to provide against injury or
inconvenience from the known existence of such large grants by
insisting upon a declaration of their absolute nullity can in its
opinion furnish no satisfactory proof that the government meant to
recognize the small grants as valid which in every previous act and
struggle
Page 37 U. S. 519
it had proclaimed to be void, as being for lands within the
American territory."
Such were the opinions and language of this Court in the case of
Foster & Elam v. Neilson. It is true that upon another
and different point from those above-mentioned, an opinion
expressed in that case was afterwards, upon information
subsequently obtained, overruled, and in order to prevent
misconstruction, it may be proper to state it. It was this. The
eighth article of the treaty of 1819 declares that all grants made
before 24 January, 1818, by the Spanish authorities
"shall be ratified and confirmed to the persons in possession of
the lands to the same extent that the same grants would be valid if
the territories had remained under the dominion of His Catholic
Majesty."
And in deciding the case of
Foster & Elam v.
Neilson, the Court held that even if this stipulation applied
to lands in the territory in question, yet the words used did not
import a present confirmation by virtue of the treaty itself, but
that they were words of contract between the two nations, and that
"the legislature must execute the contract;" "that the ratification
and confirmation which are promised must be the act of the
legislature," and "until such act shall be passed, the Court is not
at liberty to disregard the existing laws on the subject."
Afterwards, in the case of
United States v.
Percheman, 7 Pet. 86, in reviewing these words of
the eighth article of the treaty, the Court, for the reasons then
assigned, came to a different conclusion and held that the words
used were words of present confirmation by the treaty where the
land had been rightfully granted before the cession, and that it
did not need the aid of an act of Congress to ratify and confirm
the grant. This language was, however, applied by the Court and
intended to apply to grants made in a territory which belonged to
Spain at the time of the grant. The case before the Court was one
of that description. It was in relation to a grant of land in
Florida, which unquestionably belonged to Spain at the time the
grant was made, and where the Spanish authorities had an undoubted
right to grant until the treaty of cession in 1819. It is of such
grants that the Court spoke when it declared them to be confirmed
and protected by the true construction of the treaty, and that it
did not need the aid of an act of Congress to ratify and confirm
the title of the purchaser.
But it did not, in any part of the last mentioned case, apply
this principle to grants made by Spain within the limits of
Louisiana in the territory which belonged to the United States
Page 37 U. S. 520
according to its true boundary, and where Spain had no right to
grant lands after the cession to France by the Treaty of St.
Ildefonso in 1800, as hereinbefore mentioned. On the contrary,
although the Court, in the case of
United States v.
Percheman, refer to the case of
Foster & Elam v.
Neilson and carefully explain the reasons which led it to
change its opinion as to the true construction of the words "shall
be confirmed" in the eighth article of the treaty; yet it used no
expression from which it can be inferred that the opinion of the
Court had changed in relation to any other principle decided in
Foster & Elam v. Neilson. And as that case was then
under review, and manifestly at that time underwent a careful
examination by the Court, and as none of its principles was
questioned except the one above mentioned, the case of
Foster
& Elam v. Neilson must in all other respects be considered
as affirmed by that of
United States v. Percheman. Indeed,
we are not aware of any case in which its authority has been
doubted by the Court in any of its principles, with the single
exception above-mentioned. Expressions may perhaps be found in some
opinions delivered here which, detached from the case under
consideration, might create some doubt upon the subject. But these
expressions must always be taken with reference to the particular
subject matter in the mind of the Court, and when this just rule of
construction is applied to the language used, it will be found that
there is no case in which the Court ever designed to shake the
authority of the case now relied on or to question the principles
there decided; further than is hereinbefore stated. So far from it,
the leading principle of the case, which declares that the boundary
line determined on as the true one by the political departments of
the government must be recognized as the true one by the judicial
department, was subsequently directly acknowledged and affirmed by
this Court in 1832 in the case of
United
States v. Arredondo, 6 Pet. 711. And this decision
was given with the same information before them as to the meaning
of the Spanish side of the treaty, which is mentioned in the case
of
Percheman, and consequently that information could not
have shaken the confidence of the Court in any of the opinions
pronounced in
Foster & Elam v. Neilson further than
has been already stated.
In this view of the subject, the case of
Foster & Elam
v. Neilson decides this case. It decides that the territory in
which this land was situated belonged to the United States at the
time that this
Page 37 U. S. 521
grant was made by the Spanish authority; it decides that this
grant is not embraced by the eighth article of the treaty which
ceded the Floridas to the United States; that the stipulations in
that article are confined to the territory which belonged to Spain
at the time of the cession, according to the American construction
of the treaty, and that the exception of the three grants made in
the ratification of this treaty by the King of Spain cannot enlarge
the meaning of the words used in the eighth article and cannot, in
the language of the Court, "extend them to embrace grants not
otherwise intended to be confirmed," or grants "which it [the
American government] had proclaimed to be void as being for lands
within the American territory." These principles, thus settled by
this Court, cover the whole ground now in controversy.
Indeed, when it is once admitted that the boundary line,
according to the American construction of the treaty, is to be
treated as the true one in the courts of the United States, it
would seem to follow as a necessary consequence that the grant now
before the Court, which was made by the Spanish authorities within
the limits of the territory which then belonged to the United
States, must be null and void unless it has been confirmed by the
United States by treaty or otherwise. It is obvious that one nation
cannot grant away the territory of another, and if a proposition so
evident needed confirmation, it will be found in the case of
Poole v.
Fleeger, 11 Pet. 210. In that case there had been a
disputed boundary between two states and the parties claimed the
same land under grants from different states. The boundary line had
been ascertained by compact between the states after the grants
were made. And in deciding between the claimants in that case, this
Court said:
"In this view of the matter, it is perfectly clear that the
grants made by North Carolina and Tennessee, under which the
defendant claimed, were not rightfully made, because they were
originally beyond her territorial boundary, and that the grant
under which the claimants claim was rightfully made because it was
within the territorial boundary of Virginia."
And again:
"If the States of North Carolina and Tennessee could not
rightfully grant the land in question, and the States of Virginia
and Kentucky could, the invalidity of the grants of the former
arises not from any violation of the obligation of the grant, but
from an intrinsic defect of title in the states."
In the case before us, the grant is invalid from "an intrinsic
defect" in the title of Spain. It is true that she still claimed
the country
Page 37 U. S. 522
and refused to deliver it to the United States. But her conduct
was in this respect in violation of the rights of the United
States, and of the obligation of treaties. The United States did
not immediately take forcible possession, as it might justly have
done, and preferred a more pacific and magnanimous policy towards a
weaker adversary. Yet its forbearance could upon no just grounds
impair its rights or legalize the wrongful grants of Spain made in
a territory which did not belong to her, for the authorities of the
United States made known by every means in their power their
inflexible determination to assert the rights of this country, and
Congress, in order to guard against imposition and injustice,
declared by law in 1804 that all grants of land made by the Spanish
authorities after the date of the Treaty of St. Ildefonso would be
null and void, excepting only those to actual settlers acquired
before December 20, 1803.
The present appellant procured his title from Spain after the
passage of this law. The land granted to him belonged not to Spain,
but to the United States, and notice had been given in the most
public and authentic manner that the Spanish grants would confer no
title before the appellant obtained his grant. Upon what ground of
law or equity, then, can the United States be now required to make
good this grant? It had done nothing to mislead him, but had taken
every measure to warn him and everyone else that it would not
submit to have the soil which belonged to the United States granted
away by a foreign power. If he has been deceived, he has either
deceived himself or been misled by the Spanish authorities, and has
no right to complain of the conduct of the United States. And if
either Spain or the United States intended to provide for these
grants in Louisiana by the treaty ceding the Floridas, it is
impossible to believe that words would not have been used which
clearly embraced them, and would have left no doubt as to the
intention of the parties to the treaty.
If, therefore, this was a new question and had not already been
decided in this Court, we should be prepared now to adopt all of
the principles affirmed in
Foster & Elam v. Neilson
with the exception of the one since overruled in the case of
United States against Percheman, as hereinbefore stated.
The questions, however, are not new ones in relation to these
grants. The same principles have been sanctioned by the
legislative, executive and judicial departments of the government,
and they must be regarded as too well
Page 37 U. S. 523
settled to be now disturbed, and we think the court below was
right in rejecting the testimony stated in the exception, which, if
even properly authenticated, could not upon established principles
have shown title in the appellant under a Spanish grant made in
1806.
The judgment of the district court is therefore
Affirmed.
MR. JUSTICE BALDWIN dissented.
This cause came on to be heard on the transcript of the record
from the District Court of the United States for the Eastern
District of Louisiana and was argued by counsel. On consideration
whereof it is now here ordered and adjudged by this Court that the
judgment of the said district court in this cause be and the same
is hereby affirmed with costs.